Citation Nr: 0903844
Decision Date: 02/04/09 Archive Date: 02/12/09
DOCKET NO. 05-20 564 ) DATE
)
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On appeal from the
Department of Veterans Affairs Regional Office in Columbia,
South Carolina
THE ISSUE
Entitlement to an initial evaluation in excess of 10 percent
for residuals of left comminuted talus fracture.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
R. Williams, Law Clerk
INTRODUCTION
The veteran served on active duty from April 2000 to December
2000 and in the Army National Guard on a period of active
duty for training (ADT) from June 7, 2004 to August 21, 2004.
This matter came to the Board of Veterans' Appeals (Board) on
appeal from rating decisions of the Department of Veterans
Affairs (VA) Regional Office (RO) in Columbia, South Carolina
dated April 2005 and May 2006. The April 2005 decision
granted service connection for residuals of a left comminuted
talus fracture and assigned a 10 percent disability
evaluation, effective July 2, 2004. The May 2006 decision
continued the rating.
The Board also notes that the May 2006 rating decision denied
service connection for an unspecified back disability. The
veteran only perfected an appeal for the issue of an initial
disability evaluation in excess of 10 percent for residuals
of left comminuted talus fracture. See 38 C.F.R. § 20.200.
In March 2007, the veteran submitted VA Form 21-4142,
Authorization and Consent to Release Information, to the VA.
This form appeared to raise a claim for service connection
for a knee injury. Since this issue has not been developed
for appellate review, it is referred to the RO for
appropriate action.
FINDING OF FACT
The medical evidence establishes that the veteran's left
ankle disability is productive of no more than moderate
impairment.
CONCLUSION OF LAW
The criteria for an initial evaluation in excess of 10
percent for residuals of a left ankle disability have not
been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West
2002); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45,
4.71a, Diagnostic Code 5271 (2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
Legal Criteria
Disability evaluations are determined by the application of
VA's Schedule for Rating Disabilities (Rating Schedule), 38
C.F.R. Part 4. The percentage ratings contained in the
Rating Schedule represent, as far as can be practicably
determined, the average impairment in earning capacity
resulting from diseases and injuries incurred or aggravated
during military service and the residual conditions in civil
occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1
(2008).
The basis of disability evaluations is the ability of the
body as a whole to function under the ordinary conditions of
daily life, including employment. 38 C.F.R. § 4.10 (2008).
Where there is a question as to which of two evaluations
shall be applied, the higher evaluation will be assigned if
the disability picture more nearly approximates the criteria
required for that rating. Otherwise, the lower rating will
be assigned. 38 C.F.R. § 4.7 (2008).
In Fenderson v. West, 12 Vet. App. 119 (1999), the United
States Court of Appeals for Veterans Claims (Court) held that
evidence to be considered in the appeal of an initial
assignment of a disability rating was not limited to that
reflecting the then current severity of the disorder. Cf.
Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Fenderson,
the Court also discussed the concept of the "staging" of
ratings, finding that, in cases where an initially assigned
disability evaluation has been disagreed with, it was
possible for a veteran to be awarded separate percentage
evaluations for separate periods based on the facts found
during the appeal period. Id. at 126-127.
Disability of the musculoskeletal system is primarily the
inability, due to damage or infection in the parts of the
system, to perform the normal working movements of the body
with normal excursion, strength, speed, coordination, and
endurance. It is essential that the examination on which
ratings are based adequately portray the anatomical damage
and the function loss with respect to all of these elements.
In evaluation disabilities of the musculoskeletal system, it
is necessary to consider, along with the scheduler criteria,
functional loss due to flare-ups of pain, fatigability,
incoordination, pain on movement, and weakness. DeLuca v.
Brown, 8 Vet. App. 202 (1995). The functional loss may be
due to absence of part, or all, of the necessary bones,
joints and muscles, or associated innervation, or other
pathology and evidenced by visible behavior of the claimant
undertaking the motion. Weakness is as important as
limitation of motion, and a part which becomes painful on use
must be regarded as seriously disabled. 38 C.F.R. § 4.40.
Pain on movement, swelling, deformity or atrophy of disuse as
well as instability of station, disturbance of locomotion,
interference with sitting, standing, and weight bearing are
relevant considerations for determination of joint
disabilities. 38 C.F.R. § 4.45.
When there is an approximate balance of positive and negative
evidence regarding the merits of an issue material to the
determination of the matter, the benefit of the doubt in
resolving each such issue shall be given to the veteran. See
38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3. In Gilbert v.
Derwinski, 1 Vet. App. 49, 53 (1990), it was observed that "a
veteran need only demonstrate that there is an 'approximate
balance of positive and negative evidence' in order to
prevail." To deny a claim on its merits, the preponderance
of the evidence must be against the claim. Alemany v. Brown,
9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at
54.
Analysis
The veteran seeks an initial evaluation in excess of 10
percent for his left ankle disability. He sustained a talus
fracture in service, and now reports a history of pain and
inability to run or lift and carry weight.
As previously noted, by rating decision dated April 2005, the
RO granted service connection for residuals of a left
comminuted talus fracture and rated the disability as 10
percent disabling, effective July 2, 2004 under Diagnostic
Code (DC) 5271.
Under DC 5271, limited motion of the ankle warrants a 10
percent disability evaluation if moderate and a 20 percent
evaluation if marked. The Board observes that the words
"moderate" and "marked" are not defined in the Rating
Schedule. Rather than applying a mechanical formula, the
Board must evaluate all of the evidence to the degree that
its decisions are "equitable and just." See 38 C.F.R.
§ 4.6 (2008). It should also be noted that use of
descriptive terminology such as "mild" by medical examiners,
although an element of evidence to be considered by the
Board, is not dispositive of an issue. All evidence must be
evaluated in arriving at a decision regarding an increased
rating. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. §§ 4.2,
4.6 (2008).
Normal range of dorsiflexion is from 0 to 20 degrees and
normal plantar flexion is from 0 to 45 degrees. 38 C.F.R. §
4.71, Plate II (2008).
In this case, a review of the record reveals that since
service connection has been in effect, the veteran's left
ankle disability has not been productive of marked
impairment. Rather, the disability has been productive of no
more than moderate impairment.
The service treatment records show that the veteran injured
his left ankle during a training exercise in June 2004. He
was taken to the Womack Army Medical Center emergency room
and diagnosed with a left ankle fracture. He subsequently
underwent a left talus repair. In February 2005, the veteran
was afforded a VA examination. On history, the examiner
noted that the veteran was currently active and using a cane
at home twice a week because he cannot apply full weight.
The veteran also reported receiving therapy twice a week. X-
ray of the left ankle revealed a small heterotropic
ossification and that the ankle mortise was relatively well
maintained. Upon examination, the left ankle was normal to
palpation. There was evidence of limited motion with plantar
flexion. There was no evidence of redness, heat, swelling,
effusion, drainage, abnormal motion, instability or weakness.
Active dorsiflexion was 20 degrees and active plantar flexion
was 30 degrees. The examiner noted that the range of motion
of the left ankle was not additionally limited by pain,
fatigue, weakness, or lack of endurance. The examiner
diagnosed the veteran with a healed left talar fracture.
Subsequently, in March 2005 the veteran was evaluated by Dr.
L., a private examiner. Dr. L. noted that the veteran's gait
was stable and the left ankle range of motion was within
normal limits. He further noted the skin outside the
affected area appeared intact and the pain was localized to
the fibula. Dr. L. commented that the veteran was able to
bear weight on the affected ankle and foot.
Based on the foregoing, the Board finds that the veteran has
no more than moderate limitation of motion of his ankle. The
medical findings discussed above do not show that the veteran
has marked limitation of motion so as to warrant the
assignment of a higher rating. The Board is mindful of the
veteran's limitations concerning running and carrying weight.
The report from Dr. L. reflects that the veteran has pain
after being on his feet all day. However, he is able to
perform his daily functions. He has not reported any lost
time from work because of his ankle condition and he is able
to walk. In light of these capabilities, the Board finds
that a moderate rating is appropriate. At no time since
service connection has been in effect, has his limitation of
motion been more than 50 percent of what is considered
normal. Therefore, an increase to a 20 percent evaluation is
not warranted under DC 5271.
The Board must also consider whether this case presents other
evidence that would support a higher rating on the basis of
functional limitation due to weakness, fatigability,
incoordination, or pain on movement of a joint. See 38
C.F.R. §§ 4.10, 4.40, see also DeLuca v. Brown, 8 Vet. App.
202, 206-07 (1995). Functional loss due to pain must be
supported by adequate pathology and evidenced by the visible
behavior of a claimant. 38 C.F.R. § 4.40; Johnston v. Brown,
10 Vet. App. 80, 85 (1997). The Board observes that 38
C.F.R. § 4.40 does not require a separate rating for pain.
See Spurgeon v. Brown, 10 Vet. App. 194, 196 (1997).
The Board acknowledges the veteran's contention that his left
ankle injury has limited his ability to participate in many
recreational activities. However, such functional impairment
is already contemplated in the currently assigned 10 percent
rating, and the assignment of a higher rating is not
supported by the competent, credible medical evidence. The
veteran's clinical findings do not show a loss of motion due
to pain which would require an increased rating under DeLuca.
In fact, in February 2005 the VA examiner specifically
addressed the DeLuca concerns and found no pain upon
dorsiflexion and plantar flexion. The examiner further noted
that the veteran's left ankle range of motion is not limited
by fatigue, weakness, and lack of endurance. Furthermore,
Dr. L. found the veteran's left ankle range of motion to be
within normal limits. Thus, the evidence weighs against the
veteran's claim in this regard. See DeLuca, supra.
The Board has evaluated the veteran's left ankle disability
under all other potentially applicable diagnostic codes to
determine whether he can be rated higher than 10 percent.
Objective medical findings do not include ankylosis of the
left ankle, ankylosis of the left subastragalar or tarsal
joint, malunion of os calcis or astragalus, or astragalectomy
of the left ankle. Consequently, evaluation of the veteran's
left ankle disability under Diagnostic Codes 5270, 5272, 5273
or 5274, respectively, is not warranted.
The Board notes that the veteran is appealing the initial
assignment of an evaluation following the grant of service
connection for a left ankle disability, and that in such
cases, the Board must consider whether staged ratings should
be assigned based upon the facts found. Fenderson v. West,
12 Vet. App. 119 (1999). In this case, there is no evidence
that there have been changes in the veteran's medical status
regarding the left ankle disability. Therefore, his overall
disability has not changed and a uniform rating is warranted.
The provisions of 38 C.F.R. § 3.321(b)(1) have also been
considered. Ratings are to be based as far as practicable
upon the average impairment of earning capacity; however, in
exceptional cases where the schedular evaluations are found
to be inadequate, an extraschedular evaluation can be
provided commensurate with the average earning capacity
impairment due exclusively to the service-connected
disability. A finding that the case represents such an
exceptional or unusual disability picture with such related
factors as marked interference with employment or frequent
periods of hospitalization as to render impractical the
application of the regular schedular standards.
In this case, there is no objective evidence of record that
the veteran has experienced marked interference with
employability solely because of this left ankle disability.
Nor is there any evidence that he has been frequently
hospitalized for the treatment of this disorder. The left
ankle symptoms of pain and limitation of motion are normal
manifestations of this disability and are contemplated in the
rating schedule. Therefore, the Board finds no exceptional
circumstances that would warrant referral for consideration
of an extraschedular evaluation.
In this case, the Board finds that the preponderance of the
evidence weighs against the veteran's claim of entitlement to
an initial evaluation in excess of 10 percent for his
service-connected residuals of a left talus fracture and the
benefit-of-the-doubt rule is not for application. See 38
U.S.C.A. § 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49, 55
(1990).
Duty to Notify and Duty to Assist
The Veterans Claims Assistance Act of 2000 (VCAA) describes
VA's duty to notify and assist claimants in substantiating a
claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and
3.326(a). Upon receipt of a complete or substantially
complete application for benefits, VA is required to notify
the claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a);
38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App.
183 (2002).
The RO provided a VCAA notice letter to the veteran in
January 2005, before the original adjudication of the claim.
The letter notified the veteran of what information and
evidence must be submitted to substantiate a claim for
service connection, as well as what information and evidence
must be provided by the veteran and what information and
evidence would be obtained by VA. He was also told to inform
VA of any additional information or evidence that VA should
have, and was told to submit evidence in support of his claim
to the RO. The content of the letter complied with the
requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R.
§ 3.159(b). See also VCAA letter dated March 2006.
As previously noted, this appeal arises from disagreement
with the initial evaluation following the grant of service
connection. The courts have held that once service
connection is granted the claim is substantiated, additional
VCAA notice is not required, and any defect in the notice is
not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed.
Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).
The veteran has been afforded appropriate notice under the
VCAA and has been afforded ample opportunity to participate
in the adjudication of his claim. See generally Overton v.
Nicholson, 20 Vet. App. 427, 435 (2006).
The Board finds that all relevant evidence has been obtained
with regard to the veteran's claim for an increased rating,
and the duty to assist requirements have been satisfied. All
available service treatment records were obtained. A VA
examination was performed in 2005 in order to obtain medical
evidence as to the nature and extent of the claimed
disability. The examination report is adequate for rating
purposes. The examiner reviewed the veteran's medical
history and records and detailed pertinent examination
results. The RO also obtained a private medical report and
treatment records as well. There is no identified relevant
evidence that has not been accounted for.
Under the circumstances, the Board finds that there is no
reasonable possibility that further assistance would aid the
veteran in substantiating the claim. Hence, no further
notice or assistance to the veteran is required to fulfill
VA's duty to assist him in the development of the claim.
Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v.
Principi, 15 Vet. App. 143 (2001).
ORDER
Entitlement to an initial evaluation in excess of 10 percent
for residuals of a left comminuted talus fracture is denied.
____________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs